Tertiary Rules

H.L.A. Hart famously suggested to understand legal systems as consisting not only of primary rules – rules that require or forbid certain conduct – but also of secondary rules – rules that determine how rules are created, changed, and abolished. This is enough for law within one system, but it cannot account for relations between different legal systems. For this purpose, the chapter introduces the concept of tertiary rules that determine a legal system’s relation with another legal system. The most fundamental such tertiary rule is the rule of external recognition – the rule with which a legal system recognizes a foreign law as law. But this is not the only tertiary rule – choice-of-law rules and certain other rules also count as tertiary rules. The chapter demonstrates the empirical and theoretical importance of the concept of tertiary rules and discusses other examples.

Entangled Legalities Beyond the State

Framing the volume, this chapter introduces the notion of legal entanglements and lays out implications for our understanding of law and its dynamics. Entanglements – relations between norms from different origins that are neither integrated nor fully separated – are a core feature of the contemporary law beyond the state, and have been characteristic of law for much of its history, but they have long been neglected by legal scholars and theorists conceiving of the law through the prism of legal systems. This chapter traces the origins of the concept, manifestations and forms of entanglement, the dynamics behind them as well as the consequences for the stability of political and social order. It also uses these engagements to introduce the different contributions to the volume and highlight the different ways in which they reconstruct and assess entanglement and its challenges.

Entangled Hopes: Towards Relational Coherence

One dynamic for the entanglement of law might be said to be the mobilisation of law from below. The myriad mobilisations of law by local social struggles around transnational relations, particularly over global value chains, resource rights and human rights violations, refer to presumed precedents from other situations and other jurisdictions, and claim the applicability of norms from other legal orders to their concerns. Rumours of rights entangle law. Such mobilisations of law from below rely on strategic comparisons, sometimes conjectural and tentative equations, and a belief in law’s coherence. From their position of relative weakness, they appeal to any norm that might provide them with legal arguments. They struggle to make these norms binding, and hence for their trans-systemic validity. I argue that these entanglements strive for relational coherence – a coherence that is transsystemic and unsystematic at the same time.

Belt, Road and (Legal) Suspenders: Entangled Legalities on the ‘New Silk Road’

The Belt and Road Initiative, formerly known as the “New Silk Road” is a central part of the People's Republic of China’s 13th 5-year plan and geo-politically, this might be the most important global governance initiative since the end of WWI. But what does it mean for law? Surely it is an exemplar of entangled legalities. Focusing on the role of distinct actors as nodes of entanglement between different legal orders, this chapter argues that structures of practice as well as cognitive limitations and sociological factors keep law's engagement with complexity enmeshed but separate, along the lines of (most obviously) national law, but more so along the lines of policy-issues and the object-oriented nature of distinct legal fields. The chapter narrates – hypothetically, though firmly based in reality – different views of actors engaging with the Belt and Road Initiative, and it emphasizes the close connection between legal entanglement and non-hierarchical, imperial designs.

Normative pathways between UN human rights treaty monitoring bodies and domestic courts

The paper inquires into legal entanglements through the analysis of normative pathways that guide the deliberative space involving UN human rights treaty monitoring bodies and domestic courts. The paper examines one such pathway, namely that States parties ought to give due consideration to the findings of UN bodies. The legal basis of such a duty to consider remains contested, and the duty to consider is precarious inasmuch as its effectiveness depends on how precisely consideration is given by judges in a particular case. Nevertheless, the duty to consider—and its normative variations—occasionally appears in the reasoning of domestic courts whose narrative is entangled with treaty interpretation by UN human rights monitoring bodies. While the duty to consider may not be a robust normative path, it arguably paves the way for a forward-looking deliberative space by creating the opportunities for learning and self-reflection for both the monitoring bodies and domestic courts.